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OPINION

Courts can't censor jury rights flyers

Posted on September 28, 2020

Columns

Activists can’t be jailed for telling jurors they’re free to acquit defendants who break unjust laws, a federal court recently confirmed.

U.S. District Judge Denise Cote struck down a jury tampering provision of a New York criminal contempt statute on July 29, finding that Michael Picard was exercising his First Amendment right when he distributed literature on jury nullification outside a Bronx courthouse in December 2017.

Picard handed “No Victim, No Crime” flyers to several passersby without asking whether they were currently serving on a jury or discussing any specific cases, Cote noted in her opinion. A state court officer arrested Picard under a criminal contempt law that banned the display of placards or signs “concerning the conduct of a trial” or “demanding any specified action or demonstration” by a court or jury within 200 feet of a courthouse.

While the flyers encouraged jurors to “nullify” laws with which they disagree by refusing to vote for a conviction, his sign bore only the words “Jury Info.” An assistant district attorney declined to prosecute Picard, but he sued to invalidate the state law anyway.

Cote ruled that defendants “have not shown that the state must criminalize speech in this way to protect the integrity of ongoing trials” and concluded the law couldn’t survive Picard’s constitutional challenge.

The case was resolved five weeks before Jury Rights Day, observed each year on Sept. 5. That date marks William Penn’s 1670 acquittal in London after a judge instructed jurors to convict him on a charge of unlawfully preaching the Quaker faith.

Jurors’ act of defiance infuriated the judge, and he ordered all 12 men jailed along with Penn. But the jury eventually prevailed in a case that established nullification rights in English common law.

Across the pond, the practice struck a blow for free speech more than a half-century before the First Amendment was set to parchment. In 1735, a New York jury acquitted journalist John Peter Zenger on a criminal libel charge for criticizing public officials. Zenger was guilty of something that shouldn’t have been a crime, so his peers in the jury box chose to spare him the consequences.

Today, jury nullification exists in a delicate dance between judges, prosecutors and jurors. Federal courts acknowledge that juries can judge the law as well as the evidence, but they’ve also decided judges must withhold this information and instruct jurors to apply the law as it’s explained from the bench.

“If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision,” 4th Circuit Court of Appeals Judge Simon Sobeloff wrote in the 1969 case U.S. v. Moylan.

In 1997, the 2nd Circuit ruled that jurors couldn’t be dismissed on mere suspicion of a nullification attempt. While a juror who openly refuses to follow the law can be removed, judges can’t infer intent to nullify from a refusal to convict.

In the court’s written opinion, Circuit Judge Jose A. Cabranes noted “shameful examples of how nullification has been used to sanction murder and lynching,” including a jury’s 1955 acquittal of the two men accused in Emmitt Till’s shooting death.

Groups like the Fully Informed Jury Association say nullification should be used to prevent punishment for victimless crimes. It’s been successfully deployed in marijuana possession cases, as polls show two-thirds of Americans now support cannabis legalization.

The Tenth Amendment Center, which believes the federal government has encroached on powers the Constitution reserves for states and individuals, calls nullification “a vital tool in defense of liberty.”

Juries don’t always deliver the right verdict. But nullification advocates put more faith in the wisdom and understanding of our fellow citizens in the jury box than in the law’s supposed inerrancy.

The current compromise — jurors have the right to nullify the law, but they can’t openly admit to doing so and judges are told it’s their duty to dissuade them — requires pamphleteers like Michael Picard to keep their lonesome vigil outside America’s courthouses.

For better or worse, someone has to tell jurors the truth about the power they wield.

Corey Friedman is editor of The Wilson Times and executive editor of Restoration NewsMedia. In this weekly column for Creators Syndicate, he explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To read features by other Creators writers and cartoonists, visit www.creators.com.

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